Everything you wanted to know about ADAAA, but were afraid to ask!

1. Everything you wanted to know about ADAAA, but were afraid to ask! Joe Bontke EEOC Houston District Office Texas Governor’s Committee on People with Disabilities

2. What’s in your “backpack”?

3. "Everyone is entitled to their own opinions, but not their own facts.“Daniel Patrick Moynihan

4. Only 18% of PWD are born with it Source: NIDRR Demographics and Statistics RRTC at Cornell University’s Employment and Disability Institute, calculations from 2003 ACS PUMS file performed by Robert Weathers, 2005. 4

5. A Few Facts… *32,690 Retaliation Charges 95,402 Total Charges Filed!

6. Percentage of ADA Charges by Basis (Top 5 Disabilities), 1993-2007 6 Source: Calculations by M. Bjelland, Cornell University, Employment and Disability Institute, using the EEOC IMS files, 1993-2007. Research funded by the USDE-NIDRR.

7. % of ADA EEOC claims by Issue(Top 5), 1993-2007 Source: Calculations by M. Bjelland, Cornell University, Employment and Disability Institute, using the EEOC IMS files, 1993-2007. Research Funded by the USDE-NIDRR.

8. What arethe 5 new rules the EEOC just issued for interpreting the new ADA?' • Do the new regs apply retroactively to previous ADA claims? • What are the conditions that are still excluded from the definition of a disability?

9. AD triple A • -On September 25, 2008, the ADA Amendments Act (ADAAA) was signed into law, it became effective on January 1, 2009. • -The U.S. Senate and the U.S. House of Representatives both unanimously passed the ADAAA. • -The ADAAA focuses on the discrimination at issue instead of the individual's disability.

10. -It makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC ADA regulations • -The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. • -However, it changes the way that the statutory terms should be interpreted..

11. ADA Amendments Act • Most significantly, the ADAAA …. • directs EEOC to revise the portion of its regulations that defines the term "substantially limits"

12. expands the definition of "major life activities" by including two non-exhaustive lists: • 1. The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); • 2. The second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, respiratory, neurological, brain, circulatory, endocrine, and reproductive functions")

13. ADA Amendments Act • States that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability; • Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

14. ADA Amendments Act • Provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor;

15. ADA Amendments Act • Provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation; and • Emphasizes that the definition of "disability" should be interpreted broadly.

16. What is truth

18. Finished files are the re- sult of years of scientif- ic study combined with the experince of many years of experts.

20. Finished files are the re- sult of years of scientif- ic study combined with the experince of many years of experts.

21. Is your perception sometimes your truth?

22. Who would you pick for a CEO position? • Candidate A cannot walk. He cannot stand without braces that run the entire length of his legs; cannot get out of bed, get dressed, reach the bathroom or get to his desk without the assistance of another person and a wheelchair. • Candidate B has a glandular disorder and back problem. He takes daily medication and often uses painkillers. He has been hospitalized nine times in the last decade, once for 19 days, a couple of times for a week at a time. • Candidate C has a history of depression.

23. Americans with Disabilities Act-Definition of “Disability” • A physical or mental impairment that substantially limits a major life activity; • A record of such an impairment; • Being regarded as having such an impairment • But, the meaning of the terms “major life activities” and “substantially limits,” as well as the definition of “regarded as,” are quite different than under the original ADA.

24. Purposes of ADA Amendments Act (ADAAA) • To restore the ADA’s broad protections as intended by Congress; and • To reject the Supreme Court’s view in the Sutton trilogy that “disability” should be determined by reference to the effects of mitigating measures

25. Purposes of ADAAA • To reject the Supreme Court’s holding in Toyota that the ADA requires a “demanding standard” for establishing coverage and requires that an impairment “severely restrict” major life activities • To express Congress’s expectation that EEOC will revise its regulation defining “substantially limits” as “significantly restricted”

26. “Substantially Limited”-if discrimination was prior to 1/1/09 • In old regulations, EEOC said to be substantially limited, an individual should be either unable to perform the major life activity or significantly restricted in the ability to perform a major life activity. • Consider the nature and severity of the impairment;the duration or expected duration of the impairment; and the long term impact of the impairment.

27. ADAAA Definition of “Disability” • Definition of “disability” construed broadly • Mitigating measures (other than ordinary corrective lenses) should not be considered • Impairment can be a disability even if episodic or in remission

28. “Substantially Limits” if discrimination occurred on or after 1/1/09 • ADA Amendments Act does not affirmatively define the term “substantially limits.” • With ADAAA, the disability determination is “an appropriate threshold issue” but “not an onerous burden” • See 2008 Senate Managers’ Statement at 7

29. Major Life Activities • Include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

30. Major Life Activities • The term “major life activities” also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

31. Major Life Activities • Lists in the ADA Amendments Act are non-exhaustive. • Some activities that the Commission previously recognized in prior interpretive guidance or in litigation – such as reaching, sitting, interacting with others, and eliminating waste – are not specifically included in the ADA Amendments Act, but field staff should assume that these can also be considered major life activities

32. Episodic/In Remission • An impairment that is “episodic or in remission” is a disability if it would substantially limit a major life activity when active • An individual with epilepsy who is substantially limited in a major life activity such as caring for self, walking, seeing, speaking, or thinking during a seizure would be an individual with a disability.

33. Episodic/In Remission • An individual with cancer that is in remission would be an individual with a disability under the first prong of the definition if recurrence of the cancer would substantially limit a major life activity • Other examples include multiple sclerosis, hypertension, diabetes, asthma, major depression, bipolar disorder, and schizophrenia.

34. Field Guidance • The regulations on the ADAAA may contain further definition of the term “substantially limits,” • Until those regulations are final, EEOC staff should give a broad interpretation to the term as is intended by the findings and purposes of the Act.

35. For example, in most cases, it will be easy to conclude that impairments such as diabetes, epilepsy, paraplegia, blindness, deafness, bipolar disorder, monocular vision, multiple sclerosis, and Parkinson’s disease, among others, will substantially limit a major life activity.

36. “Comparison to most people” on/after 1/1/09 • The ADA Amendments Act legislative history uses the term “most people in the general population” instead of the EEOC regulatory phrase “average person in the general population.”

37. “Comparison to most people” on/after 1/1/09 • The legislative history indicates that a fact-finder may often be able to compare an individual’s limitation to the ability of most people in the general population using a common-sense standard, without resorting to scientific or medical evidence

38. “Comparison to most people” on/after 1/1/09 • Example, the ability of an individual with an amputated limb to perform a major life activity is compared to other people in the general population, not to other amputees. • Similarly, a seventy-year old employee with heart disease is compared to other people in the general population, not merely to other seventy-year olds or to other people with heart disease.

39. ADAAA –Don’t consider Mitigating Measures in Determining Coverage Mitigating measures include: • medication, medical supplies and equipment, low vision and hearing devices, prosthetics, mobility devices, etc. • Use of assistive technology • Reasonable accommodations • Learned behavioral or adaptive neurological modifications

40. One Exception-Consider Ordinary Eyeglasses or Contact Lenses • Definition: “lenses that are intended to fully correct visual acuity or eliminate refractive error” • Distinguished from “low vision devices,” defined as “devices that magnify, enhance, or otherwise augment a visual image”

41. “Regarded As” Disabled • Broader definition of “regarded as” disabled that would cover anyone subjected to an action “prohibited by this Act” (example, not hired or fired) because of a real or perceived physical or mental impairment • “Regarded as” would exclude impairments that are transitory (less than six months) and minor • Individuals “regarded as” disabled not entitled to reasonable accommodation

42. ADAAA Field Guidance • The most important practical effect of the ADA Amendments for EEOC investigators and attorneys is that they should expect to be spending more time and effort evaluating the merits of disability discrimination and reasonable accommodation claims, and less on determining whether an individual meets the definition of disability.

43. General rule: An employer must provide a reasonable accommodation to an individual with a disability if requested and if doing so does not pose an undue hardship

44. Reasonable accommodation • A reasonable accommodation is a change in the workplace, or in the way things are usually done, that provides equal employment opportunities for individuals with disabilities

45. Undue hardship: • Significant difficulty or expense • Focus on resources and circumstances of employer • Consider financial difficulty as well as reasonable accommodations that are extensive, substantial, or disruptive • consider impact on operations

46. GINA • Genetic Information Non Discrimination Act (GINA) • Title II of the Act covers all entities subject to Title VII of the Civil Rights Act of 1964, including the federal government. • Title II becomes effective on November 21, 2009. • EEOC’s proposed regulations have been published

47. GINA • Prohibits covered entities from using genetic information about an individual when making employment decisions. (no exceptions) • Prohibits the acquisition and disclosure of genetic information, with limited exceptions • Includes an anti-retaliation provision.

48. “Genetic Information” • Includes information about an individual’s genetic tests, genetic tests of a family member, and family medical history. • Genetic information does not include information about the sex or age of an individual or the individual’s family members, or information that an individual currently has a disease or disorder. • Genetic information also does not include tests for alcohol or drug use.

49. GINA-Confidentiality • Employers must keep the information confidential and, if the information is in writing, must keep it apart from other personnel information in separate medical files. • An employer may keep genetic information in the same file as medical information subject to the ADA.

50. Exception-- Acquisition of Genetic Information • One exception, sometimes referred to as the “water cooler” exception, applies to inadvertent acquisition of genetic information. • Example-- a supervisor overhears a conversation between co-workers in which genetic information is discussed or receives genetic information in response to a question about the general health of an employee or employees family member, or where an employer receives genetic information as part of documentation an employee submits in support of a request for reasonable accommodation under the Americans with Disabilities Act (ADA) or other similar law.